The Fiscal Case for Criminal Justice Reform

by Brendan Kennedy

It has been a rough few weeks for civil rights and criminal justice. Donald Trump, whose promises of “law-and-order” echo what Nixon said before he set a decades-long crackdown on minority communities into motion, selected Sen. Jeff Sessions as his pick for Attorney General. The pick raised concerns, largely because a bipartisan Senate commission had previously rejected his nomination for federal court based on a history of racist statements and disdain for civil rights cases. Then, a single holdout in the South Carolina jury for the Walter Scott case made a mistrial look inevitable. The case was one of the most egregious examples of a police officer killing an unarmed person of color in recent years. A former S.C. attorney general had called it a clear example of murder, but the jury could have settled for manslaughter. A mistrial would raise the question of whether an officer could ever face a conviction for killing a civilian.

It is clear that our society is still dangerously unmoved by moral arguments for criminal justice and police reform.

Still, recent years have seen a bipartisan criminal justice push, with a bill in Congress gaining traction and conservative states like Oklahoma making reforms. As is so often the case, this latest push has been motivated primarily by budget deficits. And if cash remains the main motivating factor for politicians, then there is a serious case to be made for criminal justice reform on a much larger scale.

The building blocks for these reforms have had bipartisan backers, both in Washington and in state governments. At the federal level, a series of congressional bills would have, in total, saved over $700 million over a decade. The bills took steps to scale down mandatory minimums, reduce drug sentencing, and expand rehabilitation avenues, among other changes. But the incarceration complex ushered in during the 80’s and 90’s is a behemoth, and $700 million over a decade hardly dents the $7 billion that taxpayers send to the Bureau of Prisons annually.

The other issue is that federal incarceration is not the main factor driving costs. The great majority of corrections spending in the country comes from the states, and while federal incentives and laws can guide state incarceration policy, the impetus is still on the state governments.

Thankfully, even the most conservative states are starting to realize that maintaining their staggering rates of incarceration is not cost effective.

Federal and state efforts to reduce mandatory minimums, ease drug sentences, and expand treatment have a few fatal flaws. First, they have to undo the damage of over three decades of misguided and disastrous policies, with impacts on citizens that will stretch decades into the future. Secondly, they are undertaking this huge task through only a partial rollback of old policies, meaning that effects will be lessened and slow to take effect. Finally, budget issues and overcrowding are immediate issues in many states, and can’t be ignored for the years needed for these reforms to take effect.

What is needed, in addition to these initial fixes, is a macro-level reform of nationwide corrections policies.

While policy makers are beginning to come around on criminal justice, society is still largely stuck in outdated mindsets. Institutions are designed to maintain a costly war on drugs, incentivize incarceration, heavily police citizens for social control and profit, and value retribution over rehabilitation. All of these need to be addressed sooner rather than later if we hope to make the criminal justice system budget-friendly.

At the state and federal levels, we must end the War on Drugs and de-incentivize incarceration to have a real impact on the budget. The first step in meaningful reform is to completely retool our approach to drug crime, which currently costs $51 billion annually. The war on drugs has spurned efforts to prevent meaningful crime and end drug abuse in favor of, to borrow from The Wire, “dope on the table”. Evidence indicates that policing of drug crime is more focused on boosting stats rather than making meaningful arrests and working to solve a problem. 84% of drug arrests last year were for possession only; 38% of all drug arrests were for marijuana possession only.

If these types of arrests don’t seem to be productive in stopping drug abuse, it’s because they aren’t entirely meant to be. Relatively minor charges have become a cottage industry of fees, fines, and privatized debt collection which lets local governments profit from over policing. Small offenses and charges are meant to pile up on citizens, indebting them to local governments and the private companies they work with until they become trapped. And the deep ties that the private prison industry has with government means that mass incarceration, while cost ineffective overall, can pad the pockets of well-connected industries.

The first step in reform is to break these ties and de-incentivize over policing and over incarceration.

Once those links are freed, state and federal governments could steadily decriminalize drugs like marijuana, while softening harsh sentences for other drugs. The money used to target nonviolent addicts could be better spent elsewhere, or cut entirely, while decriminalization of marijuana could open the door to legalization and tax revenue.

Meanwhile, local governments could shift their focus to rehabilitation rather than retribution. Drug treatment has been shown to be far more effective than incarceration. But this shift in policy should apply to more than just drug abuse. For example, a jail diversion program in Bexar County and San Antonio, Texas diverts thousands of mentally ill people from jail and into treatment, cutting jail and emergency room costs by almost $10 million. And the benefits go beyond sticker prices on annual budgets. Treatment lowers rates of recidivism, meaning citizens who receive treatment are more likely to stay out of jail to work, buy goods, and pay taxes.

This attitude, where less tangible benefits are taken into account, explains the fiscal case for police reform. Many police departments face a crisis of legitimacy with their communities, meaning that the people they serve are less likely to comply or cooperate with police. In many places, police respond with harsher crackdowns, creating an antagonistic relationship between police and the people they serve.

What criminologists now tend to agree on is that legitimacy is best developed through procedural justice, or a commitment to consistency and fairness. Calls for police reform are essentially calls for procedural justice, and adopting those reforms would go a long way to repairing the relationship between police and their communities. If communities can trust the police, they can work with the police, and a police department that works alongside its community operates far more efficiently. These steps would significantly reduce the cost of crime-fighting and make communities safer.

At the moment, our criminal justice system makes the mistake of valuing retribution over rehabilitation. Criminals are viewed as irredeemable, and drug addicts and the mentally ill are treated with the same disdain as any other lawbreaker. Worse, our criminal justice system has actually begun to incentivize the overzealous punishment of citizens. This system is ineffective and wrong, but it is also costly. Scaling back the war on drugs, focusing on rehabilitation, and implementing police reform will lead to a criminal justice system that helps citizens instead of targeting them. This will steer drug addicts, nonviolent criminals, and the mentally ill away from prison cells and into treatment.

These solutions will be more cost-effective, and they will help a large segment of the population go from abandoned prisoners to contributing figures in society. While politicians may not be worried about the social crisis caused by mass incarceration, they have taken notice of the staggering costs of mass incarceration and the War on Drugs. Criminal justice reform provides more than enough fiscal benefits to spur them into action.

Brendan Kennedy is a senior at Trinity University from Dripping Springs, Texas, majoring in Political Science.

The views expressed in this article are those of the writer. The Contemporary takes no position on matters of policy or opinion.